Kenneth Mark DORROUGH, Appellant v. John Murray FAIRCLOTH and Helen Bowen, Appellees.
No. 04-13-00884-CV.
Court of Appeals of Texas, San Antonio.
July 30, 2014.
435 S.W.3d 281
Edward L. Pina, Teresa K. Valentic, Edward L. Pina & Associates, Matthew Gossen, San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, MARIALYN BARNARD, Justice, PATRICIA O. ALVAREZ, Justice.
OPINION
Opinion by: PATRICIA O. ALVAREZ, Justice.
In response to a complaint that Appellee John Faircloth was interfering with others’ right to fish, Appellant Kenneth Mark Dorrough, a deputy game warden, entered Faircloth‘s lakefront property. He saw Appellee Helen Bowen, Faircloth‘s wife, questioned her briefly, and then questioned Faircloth. After a heated verbal exchange between Faircloth and Dorrough, Appellees sued Dorrough alleging several intentional torts, and moved for a temporary injunction against Dorrough. The trial court granted the Appellees’ motion. Asserting his immunity from suit as a deputy game warden, Dorrough twice moved for summary judgment. The trial court denied both of Dorrough‘s motions, and he filed this interlocutory appeal of the latter order. For the reasons given below, we reverse the trial court‘s order, vacate the temporary injunction, and dismiss Appellees’ suit with prejudice.
BACKGROUND
Appellees, a married couple, own lakefront property on Medina Lake. In September 2009, because of a drought, land adjacent to the Faircloths’ property that had been underwater was exposed and dry. Dorrough received a telephone complaint from Curtis Coolidge, an off-duty San Antonio police officer. Coolidge asserted that John Faircloth prevented him from driving his golf cart across the lake bed while Coolidge and his children were searching for a place to fish.
In response, Dorrough entered the Faircloths’ property to investigate Coolidge‘s complaint. Dorrough went to the Faircloths’ house, knocked on the door, looked into their windows, and then saw Helen Bowen outside. Dorrough questioned Bowen briefly. As Dorrough was leaving, Faircloth returned home. Dorrough questioned Faircloth, and their conversation escalated into a verbal confrontation. The Faircloths insisted Dorrough leave their property, and he complied.
Based on this encounter, Appellees sued Dorrough for trespass to real property, threat of bodily injury, intrusion on seclu-
Dorrough answered and asserted that, at the time of the confrontation, he was a properly commissioned deputy game warden. Dorrough initially asserted he was immune from suit under the election of remedies provision of the Texas Tort Claims Act.1 See
In his motion for reconsideration, Dorrough for the first time cited Filarsky and asserted common-law official immunity as a defense. See Filarsky v. Delia, — U.S. —, 132 S.Ct. 1657, 1661-62, 182 L.Ed.2d 662 (2012). The trial court denied his motion for reconsideration but abated the cause pending resolution of this appeal. On appeal, Dorrough complains the trial court erred when it denied his motion for reconsideration based on common-law official immunity.
SUBJECT-MATTER JURISDICTION
As a threshold question, we must determine whether Dorrough successfully invoked this court‘s subject-matter jurisdiction. See City of Hous. v. Estate of Jones, 388 S.W.3d 663, 667 (Tex.2012) (per curiam) (addressing timeliness of notice of appeal following denial of amended motion); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007) (“Appellate courts have jurisdiction to consider immediate appeals of interlocutory orders only if a statute explicitly provides such jurisdiction.“). The trial court denied Dor-
A. Meeting Elements for Interlocutory Appeal
In his timely response to our order, Dorrough asserted he was entitled to an interlocutory appeal under section 51.014(a)(5). See
Dorrough‘s motion for reconsideration asserted for the first time common-law official immunity as a state official. In determining whether the trial court‘s denial of Dorrough‘s motion authorizes an interlocutory appeal, we look to the motion‘s contents rather than its title. See Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex.2011) (per curiam) (“[A]n appeal
B. Timeliness of Notice of Appeal
The trial court denied Dorrough‘s motion for reconsideration on November 24, 2013; his notice of appeal was due on December 16, 2013. See
OFFICIAL IMMUNITY FOR DEPUTY GAME WARDEN
Although Dorrough initially sought immunity from suit under the Texas Tort Claims Act, see
A. Common-Law Official Immunity
Official immunity is a common-law doctrine that protects government officials from liability and suit. Ballantyne v. Champion Builders, Inc., 144 S.W.3d 417, 422, 424 (Tex.2004) (immunity from suit); Telthorster v. Tennell, 92 S.W.3d 457, 460-61 (Tex.2002) (immunity from liability). “Texas courts have long recognized official immunity, in substance if not by name, for a variety of public officials.” Ballantyne, 144 S.W.3d at 423.
1. Purpose of Official Immunity
“Common law official immunity is based on the necessity of public officials to act in the public interest with confidence and without the hesitation that could arise from having their judgment continually questioned by extended litigation.” Id. at 424; accord Filarsky, 132 S.Ct. at 1661-62. If official immunity were not available, “candidates would be deterred from entering public service if heavy burdens on their private resources from monetary liability were a likely prospect for errors in judgment.” Ballantyne, 144 S.W.3d at 424; accord Filarsky, 132 S.Ct. at 1665. Despite public officials’ fallibility in exercising discretion and judgment, “[d]enying the affirmative defense of official immunity to public officials in such circumstances ‘would contribute not to principled and fearless decision-making but to intimidation.‘” Ballantyne, 144 S.W.3d at 424.
2. Courts Define Official Immunity
Because official immunity is a common-law doctrine, courts determine its scope and applicability. See Reata Const. Corp. v. City of Dall., 197 S.W.3d 371, 375 (Tex.2006) (“[I]t remains the judiciary‘s responsibility to define the boundaries of the common-law doctrine and to determine under what circumstances sovereign immunity exists in the first instance.“); accord City of Leon Valley Econ. Dev. Corp. v. Little, 422 S.W.3d 37, 42 (Tex.App.-San Antonio 2013, no pet.). In a number of cases, the Texas Supreme Court and intermediate appellate courts have decided
3. Standard of Review
Whether the doctrine of official immunity may extend to a deputy game warden is a question of law which we review de novo. See City of Hous. v. Williams, 353 S.W.3d 128, 133 (Tex.2011).
B. Does Official Immunity Extend to a Deputy Game Warden?
In this case of first impression, we must decide whether a deputy game warden may invoke official immunity. We note that other courts have extended official immunity to a variety of public officials carrying out discretionary official duties, such as the following:
- An employment lawyer, Filarsky, 132 S.Ct. at 1660, 1667;
- A city‘s Board of Adjustment members, Ballantyne, 144 S.W.3d at 424;
- A city‘s public school board trustees, Campbell v. Jones, 153 Tex. 101, 264 S.W.2d 425 (1954);
- Police officers, Telthorster, 92 S.W.3d at 459-60;
- Government-employed medical personnel performing governmental (non-medical) functions, Kassen v. Hatley, 887 S.W.2d 4, 11 (Tex.1994);
- County commissioners, Medina Cnty. Comm‘rs Court, 944 S.W.2d at 8-10; and
- Volunteer firefighters, Green v. Alford, 274 S.W.3d 5, 14 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (en banc).
The two cases that are most relevant here are Green and Filarsky.
1. Green v. Alford
In Green, the en banc court applied official immunity to a “volunteer firefighter for the Pasadena Volunteer Fire Department.” Green, 274 S.W.3d at 9. The opinion does not expressly state that Green was not paid for his service as a firefighter. However, it identified him as a volunteer firefighter in a volunteer fire department, and relying on the ordinary meaning of volunteer, we may conclude Green was an unpaid worker. See id. Without discussing whether Green was paid, the court decided Green was a governmental employee performing discretionary duties within the scope of his authority, and examined only the good faith element of his affirmative defense of official immunity. Id.
2. Filarsky v. Delia
In Filarsky, a case decided after Green, the Supreme Court addressed official immunity and who qualifies for its protections. Filarsky, 132 S.Ct. at 1663-66. In addition to reciting the benefits of official immunity for public officials, id. at 1665-66 (e.g., “avoiding ‘unwarranted timidity‘“), Filarsky addressed how the common law historically “extended certain protections to individuals engaged in law enforcement activities,” id. at 1664. It noted that a private individual called to serve in a posse comitatus “is entitled to the same protection in the discharge of his duties as the sheriff himself.” Id. It also observed that a “special constable, duly appointed according to law ... [was] as fully protected as any other office.” Id. (second alteration in original).
3. Extending Official Immunity to a Deputy Game Warden
In Texas, the legislature has authorized the commissioning and service of deputy game wardens.
OFFICIAL IMMUNITY FOR DORROUGH
Dorrough did not originally invoke common-law official immunity; instead, he initially moved for summary judgment based on no evidence, and the trial court denied his motion.
A. Nature of Motion for Reconsideration
In his motion for reconsideration, Dorrough raised common-law official immunity, and re-urged his no evidence motion. But a defendant “should not move for no-evidence summary judgment based on an affirmative defense that it has the burden to prove at trial.” Thomas v. Omar Invs., Inc., 129 S.W.3d 290, 293 (Tex.App.-Dallas 2004, no pet.); accord Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex.App.-Houston [14th Dist.] 2003, no pet.). Because common-law official immunity is an affirmative defense, and Dorrough has the burden to prove each of its elements, Ballantyne, 144 S.W.3d at 423;
Although Dorrough several times referred to his “no evidence motion,” Dorrough also moved the trial court to “grant summary judgment in his behalf on the basis of immunity [under section 101.106(f)] when considered together with Filarsky v. Delia,” he attached evidence supporting his motion, and he submitted additional evidence in his motion for leave to file a response to the Faircloths’ amended motion. Thus, we construe his plea for relief as a traditional motion for summary judgment. See
B. Elements of Official Immunity
Official immunity, sometimes called qualified immunity, is an affirmative defense. Ballantyne, 144 S.W.3d at 423; Kassen, 887 S.W.2d at 8; Chambers, 883 S.W.2d at 653; see City of Houston v. Kilburn, 849 S.W.2d 810, 812 n. 1 (Tex.1993) (noting that qualified immunity and official immunity are terms that are often used interchangeably). The elements of official immunity are well-established: public officials must be “(1) acting within the scope of their authority (2) in performing their discretionary duties in (3) good
C. Standard of Review
When a defendant moves for traditional summary judgment on the affirmative defense of official immunity, he must conclusively prove each element of his defense. Ballantyne, 144 S.W.3d at 424; Telthorster, 92 S.W.3d at 461; Chambers, 883 S.W.2d at 653. If the defendant movant meets this burden, and the nonmovant‘s summary judgment evidence fails to raise a genuine issue of material fact on any essential element, the movant is entitled to judgment.
To establish the element of good faith, a public official must conclusively prove that “a reasonably prudent official, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed when the conduct occurred.” Ballantyne, 144 S.W.3d at 426; accord Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 656. The test for good faith turns not on “what a reasonable person would have done,” but rather on “what a reasonable [person] could have believed.” Ballantyne, 144 S.W.3d at 426 (quoting Telthorster, 92 S.W.3d at 465). The official “must prove only that a reasonably prudent [official], under similar circumstances, might have [acted the same way].” Telthorster, 92 S.W.3d at 465; accord Chambers, 883 S.W.2d at 656. If the official meets this burden, the nonmovant “must show that ‘no reasonable person in the defendant‘s position could have thought the facts were such that they justified defendant‘s acts.‘” Chambers, 883 S.W.2d at 657; accord Telthorster, 92 S.W.3d at 465.
We review the summary judgment evidence to determine whether Dorrough met his burden, and then whether the Faircloths met theirs.
D. Summary Judgment Evidence
In the July 12, 2013 hearing on Dorrough‘s motion to reconsider the trial court‘s earlier denial of his motion for summary judgment, Dorrough complained that the Faircloths had submitted a response after 5:00 p.m. the previous day. Dorrough asked the court not to rule on his motion until he had time to read and respond to the Faircloths’ amended petition. The trial court granted Dorrough‘s oral motion, and gave him permission to file a written supplement to his motion for reconsideration. The court also gave the Faircloths permission to respond to any supplement Dorrough submitted. The court expressly agreed it would consider the supplement and response before it decided Dorrough‘s motion for reconsideration. As part of his supplement, Dorrough submitted an affidavit, with exhibits, from Lieutenant Colonel Danny Shaw, a deputy director of law enforcement for the Texas Parks and Wildlife Department. The record does not show that the Faircloths objected to Shaw‘s affidavit or exhibits. We consider Shaw‘s affidavit, exhibits, and the other summary judgment evidence as it pertains to each element of official immunity.
E. Scope of Authority
The first element of official immunity we consider is whether Dorrough was acting within the scope of his authority.
1. Applicable Law
“[P]ublic officials act within the scope of their authority if they are discharging the duties generally assigned to them.” Ballantyne, 144 S.W.3d at 424;
2. Shaw‘s Affidavit, Exhibits
In Shaw‘s affidavit, he stated he reviewed the relevant Department records; he concluded that Dorrough met all the commissioning requirements and was a properly commissioned deputy game warden on the date of the incident. He provided a geographical assignment log that showed Dorrough was assigned to the “Bandera/San Antonio” geographical area, and the Faircloths’ property is within that area. He stated that Dorrough was authorized to investigate a complaint alleging a violation of the Parks and Wildlife Code. See
3. Faircloths’ Affidavits
The Faircloths assert Dorrough was not acting within the scope of his authority because he acted improperly in confronting them, he misidentified himself as a game warden, and he should not have asked them for their property deed. They insist these alleged errors show Dorrough was acting outside the scope of his authority.
4. Dorrough Acted Within Scope of Authority
Taking the Faircloths’ affidavits as true, we nevertheless conclude they failed to raise a genuine issue of material fact on the element of scope of authority. Even if some aspects of Dorrough‘s investigation were “later determined to be incorrect,” such alleged errors do not put Dorrough‘s investigation of Coolidge‘s complaint outside the scope of his authority. See Ballantyne, 144 S.W.3d at 425; Chambers, 883 S.W.2d at 658. The controlling question for the scope of authority is not whether Dorrough made errors in his investigation; rather, it is whether he was discharging the duties generally assigned to him. See Ballantyne, 144 S.W.3d at 424; Chambers, 883 S.W.2d at 658.
The relevant sections of the Parks and Wildlife Code conclusively establish that investigating allegations of violations of the Parks and Wildlife Code is within the authority of a deputy game warden. Cf. Ballantyne, 144 S.W.3d at 425. Further, Shaw‘s affidavit and the attached exhibits, to which the Faircloths did not object, conclusively establish that Dorrough was properly commissioned and investigating within his assigned geographical area. Thus, Dorrough met his burden to conclusively prove he was acting within the scope of his authority when he investigated Coolidge‘s complaint, and the Faircloths’ evidence fails to raise a genuine issue of material fact on this element.
We turn to the next element—whether Dorrough was performing a discretionary function.
Citing the Parks and Wildlife Code, Dorrough avers he was performing a discretionary function when he investigated Coolidge‘s complaint and questioned the Faircloths. See
1. Distinguishing Mandatory and Discretionary Functions
As opposed to a mandatory function, “[i]f an action involves personal deliberation, decision, and judgment, ... it is discretionary.” Ballantyne, 144 S.W.3d at 425; accord Chambers, 883 S.W.2d at 655. Although a deputy game warden‘s duties do not comprise all the duties of a peace officer, the deputy‘s law enforcement duties invite comparisons to police officer case precedents. See
2. Is a Deputy Game Warden‘s Investigation a Discretionary Function?
A deputy game warden is authorized to investigate complaints of violations of the Parks and Wildlife Code, but there is no requirement that the deputy investigate every complaint. See
G. Good Faith
The parties vigorously dispute whether Dorrough acted in good faith when he questioned the Faircloths. To establish good faith, Dorrough must conclusively prove that a reasonably prudent deputy game warden faced with similar circumstances could have acted as he did. See Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 656. If Dorrough meets this burden, the Faircloths must then “show that ‘no reasonable person in [Dorrough‘s] position could have thought the facts were such that they justified [his] acts.‘” Chambers, 883 S.W.2d at 657; accord Telthorster, 92 S.W.3d at 465. We consider the summary judgment evidence.
1. Shaw‘s Affidavit
a. Audio Recording
In his affidavit, Shaw averred that he listened to the Faircloths’ audio recording of the verbal confrontation. He noted the recording lasted about two minutes and twenty-seven seconds. In the recording, he heard a verbal confrontation between John Faircloth and Dorrough. At the be-
b. Additional Information
In his affidavit, Shaw also included excerpts from Dorrough‘s written statement. Dorrough stated he felt threatened by John Faircloth‘s running at him, swinging his arms, and screaming in his face. Dorrough admitted he yelled at John Faircloth, but only in response to John Faircloth‘s provocative speech and actions.
c. Shaw‘s Conclusion
After briefly describing his almost thirty-years’ experience working for the Texas Parks and Wildlife Department, beginning as a game warden and advancing to deputy director of law enforcement, Shaw reviewed the applicable statutes and regulations governing deputy game wardens. Shaw stated he had reviewed the circumstances of this matter, and concluded that Dorrough erred when he misidentified himself as a game warden. Nevertheless, Shaw concluded that when Dorrough investigated Coolidge‘s complaint and questioned the Faircloths, he was “acting in an official capacity as a deputy game warden and his actions were reasonable.”
d. Dorrough Met His Burden
Given Shaw‘s affidavit and exhibits, to which the Faircloths did not object, we conclude that Dorrough met his summary judgment burden to establish that a reasonably deputy game warden could have acted as he did under similar circum-
2. Faircloths’ Affidavits
To raise a genuine issue of material fact on good faith, the Faircloths had to show that no reasonable deputy game warden could have acted as Dorrough did. See Ballantyne, 144 S.W.3d at 426; Telthorster, 92 S.W.3d at 465. In their affidavits, the Faircloths averred the following regarding Dorrough‘s conduct on the day in question:
- his breath smelled of alcohol;
- he entered their property without their permission;
- he peered through their windows;
- he yelled obscenities at John Faircloth and threatened to strike him;
- he repeatedly demanded to see their deed;
- he threatened John Faircloth with arrest if he told any more people to leave the lake bed area; and
- he acted out of animus for the Faircloths.
Because good faith is a test of objective legal reasonableness, Dorrough‘s subjective intent is irrelevant, and we do not address it. See Ballantyne, 144 S.W.3d at 427-28. Nevertheless, we address the remaining alleged facts.
The Faircloths do not allege Dorrough was intoxicated or incapacitated, nor do they provide any evidence of such impairment; they merely state that his breath smelled of alcohol. They aver that Dorrough peered, yelled, demanded, and threatened, and they imply that these actions show bad faith per se.
The Faircloths failed to provide any statute or regulation showing that Dorrough was prohibited from acting as he did. Further, they provided no affidavit from any authority familiar with deputy game warden duties, procedures, and conduct that no reasonable deputy game warden could have acted as Dorrough did given the applicable law and the facts he had at the time. See Telthorster, 92 S.W.3d at 465; Chambers, 883 S.W.2d at 657. See generally Telthorster, 92 S.W.3d at 464 (opining on the “volatile and changing circumstances” those conducting “street-level police work” sometimes encounter).
While the Faircloths may have raised questions of whether another reasonably prudent deputy game warden would have acted as Dorrough did, the Faircloths failed to meet their burden to show no reasonable deputy game warden could have acted as Dorrough did given the applicable law, John Faircloth‘s conduct, and the other circumstances present here. See City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex.2007) (explaining that the applicable test “is one of ‘objective legal reasonableness’ and the immunity protects ‘all but the plainly incompetent or those who knowingly violate the law‘” (quoting Chambers, 883 S.W.2d at 656)); Telthorster, 92 S.W.3d at 465, 467; Chambers, 883 S.W.2d at 657.
As we previously determined, we have subject-matter jurisdiction in this interlocutory appeal to decide whether the trial court erred when it denied Appellant Kenneth Mark Dorrough‘s motion for reconsideration—which we construe as a traditional motion for summary judgment.
We hold that the common-law doctrine of official immunity extends to a deputy game warden.
To invoke immunity from suit, Dorrough had to conclusively prove the elements of his affirmative defense of official immunity. Having reviewed the summary judgment evidence, we conclude Dorrough met his summary judgment burden to prove he acted within the scope of his authority while performing a discretionary act. For the element of good faith, we conclude Dorrough met his burden to prove that a reasonable deputy game warden could have acted as he did, and the Faircloths failed to meet their burden to prove that no reasonable deputy game warden could have acted as Dorrough did. Thus, Dorrough is immune from suit, and the trial court lacked subject-matter jurisdiction. See Tex. Dep‘t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004).
Therefore, we reverse the trial court‘s order, vacate the temporary injunction, and dismiss the Faircloths’ suit with prejudice.